Indiana’s RFRA is not just an LBGT issue, it is bad for business and everyone else

What is the controversy with recent law signed into effect in Indiana last week on 26 March?

The law is called “SB 101 The Religious Freedom Restoration Act” (RFRA).

In the popular press coverage it is called “Indiana’s Anti- LGBT Legislation”. How did that happen?

One of the interesting facets of current news topics is how they are reported and their social influence. Sometimes the influence is well below the media hype and sometimes the media focuses on the best click-worthy aspect and misses the wider picture.

I don’t want to get into the politics of “Anti this or that”, but let’s examine the wider picture of the effect of this public policy on business, business issues, review some history, and who I think it affects.

If you asked any American “Should all Americans have religious freedom?”, I’d bet that you would get a near 100% resounding “Yes!” I mean, the bill passed 40 – 10, a significant margin.

In the fuzziness of our memories, we all know that it is protected by some Constitutional amendment. (Don’t worry, not testable, I checked for everyone, it is the 1st Amendment.)

In Western Europe, if you asked the same question, they would say yes too, but they would be puzzled by the question. Most constitutions in Europe list religious freedom as a basic human right and it is not considered a political problem unless public safety become an issue.

When we see something that seems both complex and obvious, you have to do two things: drill down a little to understand it better and step back to see and understand the context.

This is going to be a loooong discussion, if you stop now, I’ll understand.

Otherwise… buckle in.

First, the mandatory disclaimer:

I am not a lawyer nor do I play one on TV. I am not a professional scholar or researcher. But, I do have access to the resources of the Internet. Everything below is my opinion unless I cite a specific source. The interpretations of the act and its specific sections are based on my reading and my understanding of applicable circumstances in other states in the US. When I hear a lot of rhetoric about a hot topic I owe it to myself to exercise my critical thought muscles and seek out the source documents and discover the facts for myself.

My most important discovery was that the act affects more than only the LGBT community.

Please, fact check the hell out of my article and ask lawyer friends their interpretations. My best defense and description is that I am a reasonable person interpreting the most recent version of a US state legislating RFRA.

I contend that SB 101 (I will interchangeably use “SB 101” and “Indiana’s RFRA” throughout this document) is not only a LGBT issue, but how did the press make it a LGBT controversy?

I chalk it up to the sophistication and effectiveness of LGBT advocacy organizations. Historically, LGBT interests have been opposed by people and organizations with a religious ideology. The advocacy organizations are particularly sensitive to any political activity at any level (local, state, or federal) that includes faith or religion as its basis.

There is no specific wording or phrases in the legislation that specifically targets or discriminates against the LGBT community. The authors of the bill have their legitimate deniability… and they are using it.

Special interests groups do what they do best: they view potential problems through the lens of their special interest glass. It is their function.

LGBT and various human rights groups monitored the inception of the legislation and foresaw a potential avenue of discrimination, sadly based on previous experience. The media coverage has framed the legislation as “anti-LGBT” because the groups are well organized and they got their message out for public debate and scrutiny. Also, gay-rights issues have been prominent in the US’s national consciousness through a recent series of court cases supporting same sex marriages. Thirty-seven states now recognize same sex marriage.

I’ve read in various articles that the LGBT interest groups suggested modifications to SB 101, but the authors of the legislation and the governor that signed the bill refused any modifications. LGBT responded in the court of popular opinion.

The LGBT’s message is front and center.

Well done.

But, it is too narrow.

Am I the only guy who read this?

Please pardon me if I’m being a little conceited here, but when I’ve spoken to others about this controversy, nobody… I repeat… nobody I met with an opinion on this dispute has actually read Indiana SB 101. It is available on-line, but, as a courtesy, it is included at the very bottom of this page if you wish to read it for yourselves.

SB 101 RFRA is pretty short, about 3 pages with 11 sections.

My observations and comments of SB 101

My intent here is to give a summary by section for brevity’s sake, so you don’t have to read the original. Some of the sections refer to other sections in Indiana’s legal code and I’m folding them into my comments.

EVERYTHING BELOW IS MY INTERPRETATION

Feel free to skip to the next section, my feelings will not be hurt.

Sec. 1. – The law is retroactive and includes all other state laws, orders, and regulations.

Sec. 2. – The law applies to all future laws, orders, and regulations unless some state statute excludes it.

Sec. 3. – The section claims that this law does not conflict with the “Establishment Clause” which is in the 1st Amendment of the US Constitution (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…”). My interpretation is that the law is using a little bit of circular reasoning and by its own legal existence, it is not unconstitutional.

The section also allows the state government to fund organizations and issue exemptions in the name of religious freedom.

Sec. 4. – This section defines the word “demonstration” as “meets the burdens of going forward with the evidence and of persuasion.”

I am not sure how to interpret this as it gives a specific legal definition that is only referred to once in Section 10. Some legal scholarship is needed that can better explain the nuance.

Sec. 5. – This section defines “religious belief”. The definition is, in my opinion, incredibly broad and can apply to almost anything. It specifically states that the belief does not have to be a part of any formal religious system. My interpretation is that “belief” can include any form of supernatural explanation that requires no evidence; including basic superstitions, alternate medical modalities, astrology, etc.

Sec. 6. – The section defines government entities. There are several layers to the section as it refers to other codes in Indiana law. The broad categories are state government, political subdivisions, and government entities.

I’ll list the specifics of the broad categories because it is important later when I discuss the true scope of the law:

the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law

State government

school corporation

library district

local housing authority

fire protection district

public transportation corporation

local building authority

local hospital authority or corporation

local airport authority

special service district

other separate local governmental entity

school city

school town

school township

metropolitan school district

consolidated school corporation

county school corporation

township school corporation

community school corporation

united school corporation

Special taxing district

Sec. 7. – The section defines a “person”. The section recognizes individual people, any religious organization, and all legal business forms (partnership, limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association for-profit organizations, and non-profit organizations).

All above are liable to sue, to be sued, and can claim the right of religious freedom.

This is a broader definition of a person from previous federal court decisions.

Sec. 8. – This section defines the government’s limit. Any government entity “may not substantially burden a person’s exercise of religion”. There are no definitions for “substantially burden” or “exercise of religion”.

The exceptions are (I cannot interpret the effect or intent of the exceptions):

A compelling governmental interest (vague)

That there is a least restrictive means of furthering that compelling governmental interest (vague)

[Quick note here: Since I wrote this, I have come to learn that “compelling governmental interest” is a general legal concept that is not vague in the eyes of lawyers. – KW]

Sec. 9. – Persons (see above) can invoke “religious freedom” as both a civil charge or as a defense.

If a relevant government entity is not a party to the conflict they have the unconditional right to intervene on behalf of the person. My lay interpretation is that, barring any conflict of interest, the government must be the advocate (free) of the person claiming to be burdened in exercising their religion.

Under RFRA, a person can assert their right of religious freedom. But also, a person can invoke the law if they think it might burden their religious exercise.

Sec. 10. – This section discusses the consequences if a court finds in favor of a person who is proven to be burdened.

First, the burden must be lifted.

Second, compensatory damages

Third, court costs and reasonable legal fees may be paid.

Sec. 11. – The intent of this section is unclear to me. There is a nuance I am missing. It specifically refers to private employers. Claims cannot be made against them by applicants, employees, or former employees.

The real scope of Indiana’s RFRA

Although the LGBT community has raised the flag of potential discrimination, it is really a small part of the impact of the law on public and business policy.

The sponsors of the legislation have written what I would describe as a foundation bill that has consequences beyond only the LGBT community.

If you review the specific government entities listed in Section 6 (above), the scope of the law includes business, health care, public health, education, and public funding of private organizations (including religious groups). The tactic of the law is avoid conflict with the US Constitution’s “establishment clause” that forbids the government from creating a law to establish a religions or prohibiting the exercise of religion. Instead, the RFRA strengthens a person’s religious legal standing above all other rights.

Here is an irony. If I understand the issues in my every-man kinda way, it is my understanding that similar protection bills to specifically guarantee the rights of any other minority groups would never have been introduced under the logic that everyone is already protected under the US Constitution.

Again, the comments and conclusions I draw are based on my own suppositions. There may be conflicting legal precedents that have the lead, but the discussions will be fought laboriously in court.

On the business side

One of the most difficult aspects of business is to operate in an ethical, socially responsible way. The RFRA opens some opportunity to justify behavior that would be in my opinion legal, but not ethical.

Businesses now have the opportunity and legal foundation to write human resource policies based on the tenets of their religious faith. In accordance with Indiana’s RFRA, any person (individual or legal entity) can hire or fire in accordance with the dictates of exercising their religious freedom. The law is not limited to LGBT.

Two recent examples come to mind.

In 2014 the Supreme Court, Burwell v. Hobby Lobby Stores, Inc. recognized Hobby Lobby’s right to limit what they would cover as acceptable contraception for female employees. Hobby Lobby’s argument was that some forms of contraception was contrary to their religious beliefs. The court asserted Hobby Lobby’s right under the federal version of RFRA.

Two important points. A) This was revolutionary as it was the first time the Supreme Court recognized a corporate entity’s right to exercise religious beliefs. B) The decision was limited to closely held corporations (corporations where 50% or more shares are owned by 5 or less people). Indiana’s law expands the interpretation beyond closely held companies and includes all legal forms of businesses including non-profit and for-profit companies.

I am perplexed when an employer has the power to influence an individual’s social rights. I add the caveat here to exclude public servants such as the military and some aspects of first responders.

Also in 2014, Creation Museum in Kentucky, under the leadership of Ken Ham, was provisionally awarded $18 million in tax exemptions from Kentucky’s Tourism Arts & Heritage Cabinet. In December, the Creation Museum lost their exemption because they only wanted to hire Christians who had to sign a statement of faith. Further, the policy was to hire, more specifically, conservative young-Earth creationists. The policies were contrary to Kentucky state hiring laws and the violations were the basis of the Creation Museum’s lost funding.

The important points in this case are that Indiana’s RFRA would have made the Creation Museum’s discriminatory hiring practices legal (at least at a state level and until challenged in federal court) and, in my opinion under an Indiana style RFRA, the Creation Museum could have possibly appealed the loss of its tax credit arguing that the loss constituted a burden the state placed on exercising its religion.

From a business point of view, I am on the fence regarding businesses as persons. I am not sure what to think. I am very concerned about any policy that opens the door to discrimination based on an ideology. The LGBT community is not the only one affected here. There can be an religious ideology found that will specifically discriminate against sex, skin color, sexual orientation, age… basically every demographic that discrimination laws were formed to prevent.

It is the two sided sword: if there is a loophole where you are allowed to discriminate, you have to accept it when another group discriminates against you for the same reason.

Public health

Every business must be concerned with a healthy work force. Most businesses track employee absenteeism related to illness and a standard metric. The metric can indicate general problems such as potential workplace health risk issues or specific issues related to individual performance such as chronic illnesses and measure the effect or cost to the business.

I believe public health issues are a business concern.

So what is the impact if proven public health programs such as fluoridated water and vaccinations become subject to legal challenges supported by Indiana’s RFRA? Can people sue the state for water treatment or state mandated disease prevention programs? (I am a bit horrified as I researched this topic to discover that 90% of the US states allow parents to opt out of school mandated vaccinations according to the immunize.org.)

Can persons sue, in accordance with RFRA, for medical coverage if they wish to be covered for alternative medical modalities (acupuncture, homeopathy, chiropractic manipulation, etc.)? Chiropractors have been fighting a national battle to be licensed and accepted in each of the 50 states (plus the District of Columbia) as primary medical caregivers. Their claim is that that chiropractic medicine is just as good and effective as conventional medicine, so they deserve the right to treat people, write prescriptions, and be recognized by the national healthcare system and insurance companies. There are no studies that support their assertions.

Can businesses refuse additional health care because, as legal persons, a medical procedure or treatment is contrary to their religious beliefs? As proven by Burwell v. Hobby Lobby Stores, Inc., the answer is yes, but what will be the final limit?

Can healthcare professionals in daily contact with people with compromised immune systems be allowed to refuse to take vaccines, or perhaps even worse refuse to give vaccines on the basis of their religious beliefs?

My answer to all of the questions above is “no!” As has be demonstrated in the past, public health is at risk when the beliefs of individuals outweigh the health interests of society. I refer to the numerous instances in the US of recent outbreaks of preventable diseases (globally). Individual beliefs are a terrible basis for public policy

Does RFRA supersede all other laws? I really do not know, but it seems to me that Indiana’s RFRA opens these doors. It will take years for these issues to be settled because they will be decided in court.

Public education

All businesses are concerned with identifying and recruiting a well-educated workforce. STEM is considered to be the key to technological competitiveness and innovation. STEM refers to the academic disciplines of science, technology, engineering, and mathematics. The idea is that a well-educated workforce will lead to new innovations that will contribute to long-term job creation and workforce development.

A lot about this controversy reminds me of the historical efforts of ideologues who have used their place in positions of power to subvert the education system (here and here). In the Texas case, the battle has been ongoing since 2007.

For some reason that I cannot explain, there have been previous efforts to introduce ideology into the development of state school curriculums. The primary targets of the modifications have been evolution, the climate science debate, literature (specifically banning some classical titles), and history (in the form of some revisionist view of the Judeo-Christian origins of the US). The most pivotal decisions have been state court rulings that exclude creationism from science programs in the public school systems. For more information, go to the website of The National Center for Science Education. They are a great resource and track on a state-by-state basis legal cases regarding science education and, more specifically, evolution and climate change.

I bring up the topic of evolution to introduce the more sophisticated ways conservatives are approaching how they will influence schools and education policies.

Creationism holds that the origin of the universe and the earth is explained literally in the book of Genesis. The book also explains the origin of all life forms including plants, animals, and humans. According to the literal interpretations, this all happened about 6000 years ago.

I’m not going to go into the detail of the debate, but modern cosmology, evolutionary biology, paleontology, and genetics disagree with creationism.

(I apologize in advance for this history chunk, but it is extremely relevant.)

Creationism was eventually ruled incompatible with science and excluded from science curriculums in US public schools. The ruling was based, ironically, under the “Exception Clause” that separates the state and religion (Edwards v. Aguillard).

The conservative response was to re-brand creationism into more sciency-wyiency labeling called “intelligent design” or ID. In October 2004, the Dover school district, in Pennsylvania, changed its biology curriculum to include ID as an alternate theory to evolution. Eleven parents of students sued the Dover Area School District (Kitzmiller v. Dover Area School District). The basic findings were that ID was the renamed equivalent of creationism and that it could not be mandated as a part of the science curriculum in accordance with, again ironically, under the “Exception Clause” that separates the state and religion.

The Kitzmiller v. Dover Area School District ruling became the de facto precedent quoted nationwide when evolution was challenged in school curriculums. As a quick note, creationism and ID can be explained and discussed in other school classes, such as religion or philosophy, but not as a science.

The proponents of ID tried a more subtle approach. Everyone can agree that it is important that teachers can exercise academic freedom. It is teachers who lead academic discourse and express new ideas to our flowering youth. Who could possible disagree, right?

On June 25, 2008, Governor Bobby Jindal signed into Louisiana’s Senate Bill 733.

Amanda Gefter explains the bill in an article in the New Scientist, “the strategy being employed in Louisiana by proponents of ID — including the Seattle-based Discovery Institute — is more subtle and potentially more difficult to challenge. Instead of trying to prove that ID is science, they have sought to bestow on teachers the right to introduce non-scientific alternatives to evolution under the banner of ‘academic freedom.’”

Academic freedom, according to the American Association of University Professors, normally applies to the college-level and is related mostly to research and publication of results. Louisiana made an end-run around the prohibitions of teaching a religious concept in a science classroom. They introduced what seemed to be a laudable, but unnecessary resolution that seemed to broaden the scope of academic freedom. But the true intent was to create a shield law so that Louisiana high school teachers could introduce any materials they want into any classroom regardless of state education standards or national court challenges.

The LGBT Smokescreen

What has Louisiana have to do with Indiana?

My contention is Indiana’s RFRA is the exact same tactic, but on a broader, larger scale.

I agree that the RFRA opens the door for discrimination for the LGBT community, go forth and fight the good fight. The governor and the sponsors will be glad to publicly compromise and improve the wording to address a rightfully aggrieved, but small minority.

Handshakes and backslaps all around!

What about the rest of us?

I mentioned before what I call a foundation law, a Ken term with no real legal definition (if it does have one, it is purely incidental). I’m calling it a foundation because from it any number of ideology based initiatives can be built.

The problem with such a wide-reaching law is that there is no centralized group to address the fundamental flawed premise. After all, religious freedom seems like a fundamental concept. I will repeat again, the law prioritizes the individual’s religious rights above the rest of the others. One right to rule them all.

Any LGBT specific wording will still allow “religious freedom” to justify discrimination against all “other” religions and the non-religious. Businesses will be able to make any kind of religious claim to justify any policy: hiring, firing, dress, behavior, a morality, etc. Sharia law could itself be introduced as freedom of religion.

Public health policy can be challenged on the basis of religious freedom regardless of the public consequence. Allow me to remind you of the recent outbreaks of measles (141 cases) in the US because of compromised herd immunity, directly traced and caused by parents “opting out” of recommended childhood vaccinations. Another potentially dangerous possibility is forcing alternative medical modality into the general treatment of public health issues or denying modern, effective treatments under the guise of religious freedom.

In addition to funding, non-evidence based medicine, the law could be used to fund religious organizations or causes.

Though some religions traditionally forbid the use of drugs, how will the state deal with religions that claim the use of marijuana, peyote, or ayahuasca plays an important ceremonial role? The Federal version of RFRA was originally a response to protect the religious use of peyote in Native American ceremonies (here).

As I described earlier, the religious freedom law could be used as a shield to circumvent school curriculum guidelines, a long desired prize of the conservative right, in the same way “academic freedom” was used in Louisiana. A teacher can teach whatever they want because to forbid them the school or government may burden the exercise of their religion.

I would love to be there when the first children explain to their parents the interesting day they had discussing sympathetic Wiccan magic, the coming Ragnarök, the importance of the Five Ks as commanded by the tenth Sikh Guru, Guru Gobind Singh, or how Rastafari exposed a universal truth/

The arrogant, myopic view of any religious law assumes your religion will always be the dominate one.

Conclusion

I admit to a layman’s level of knowledge. There have been 19 other states with their ratified versions of RFRA. Though I have not examined them, I’ve read that some are more conservative and others are more in the spirit of fairness. But, the Indiana version was clearly carefully crafted for broader interpretation that will favor later conservative agenda points.

I do not think it will be good for Indiana’s business future. Although it may appease a certain segment of state and local businesses, I do not think it will attract other businesses to the state. The fear of expensive religious freedom lawsuit defenses, the fear of federal civil rights lawsuits, or overturned appeals of state civil lawsuits will not be an appealing risk. Also, I think the school curriculum could be placed at future risk.

Here’s the hook, and I mean a barbed hook…

If a state legislature decided to rescind a Religious Freedom Restoration Act, will they be challenged in court of violating the US Constitution’s 1St Amendment by placing a burden on an individual’s right to exercise their religion?

Should we be concerned?

It is possible that I’m completely overthinking this topic. It is an automatic response for me to be wary whenever politicians start playing around with trigger political subjects. Are they honestly concerned? Is this grandstanding for a special segment if their constituency? Is there a long-game to this law that I’m missing as I did in the past? I am concerned because I’m not hearing a discussion on the things that I am concerned about. Am I over analyzing this or are the general issues hidden behind the special interest messages on both high profile sides of the controversy?

How will my predictions play out? Only time will tell. But it is ignorant to ignore the risk. The risk is not only to Indiana, but if the model works, then it will be the model for other states. It ascribes to ideologies a premier and protected status. Later, it will be later nearly impossible to retract.

My concern is when the carrot of religious rights becomes the stick. The law does not protect is my right to exercise ration, reason, and critical thought.

The broader and the most important takeaway on this whole story is this… whether or not you agree with anything that I just mentioned, you need to go to the source materials and understand the information and context for yourself to the best of your abilities.

SECTION1.IC34-13-9 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2015]:

Chapter 9. Religious Freedom Restoration

Sec. 1. This chapter applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015.

Sec. 2. A governmental entity statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.

Sec. 3.

(a) The following definitions apply throughout this section:

(1) “Establishment Clause” refers to the part of the First Amendment of the Constitution of the United States or the Constitution of the State of Indiana prohibiting laws respecting the establishment of religion. (2) “Granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

(b) This chapter may not be construed to affect, interpret, or in any way address the Establishment Clause. (c) Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter.

Sec. 4. As used in this chapter, “demonstrates” means meets the burdens of going forward with the evidence and of persuasion.

Sec. 5. As used in this chapter, “exercise of religion” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

Sec. 6. As used in this chapter, “governmental entity” includes the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law of any of the following:

(1) State government. (2) A political subdivision (as defined in IC 36-1-2-13). (3) An instrumentality of a governmental entity described in subdivision (1) or (2), including a state educational institution, a body politic, a body corporate and politic, or any other similar entity established by law.

Sec. 7. As used in this chapter, “person” includes the following:

(1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that:

(A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person:

(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

Sec. 10. (a) If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that:

(1) the person’s exercise of religion has been substantially burdened, or is likely to be substantially burdened; and (2) the governmental entity imposing the burden has not demonstrated that application of the burden to the person:

(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest; the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity.

(b) Relief against the governmental entity may include any of the following:

(1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter. (2) Compensatory damages.

(c) In the appropriate case, the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney’s fees, to a person that prevails against the governmental entity under this chapter.

Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.